Costello / Lee County Sheriff's Office

Darwin Costello, cradled by paternal grandfather Murray Costello. Darwin's father, Ryan, was convicted of manslaughter in the baby's death. / Special to The News-Press

Just five months into a 30-year sentence for killing his infant son, Ryan Costello walked out of jail a free man, while he appeals his case.

After posting $250,000 bail and promising to stick close to home, the Navy vet and 1998 Fort Myers High School graduate left a Panhandle prison in September and returned to his mother’s Fort Myers home.

When he heard the news, former State Attorney Joe D’Alessandro could hardly believe it. As state attorney for three decades in the 20th Judicial Circuit, which includes Lee and Collier counties, D’Alessandro watched thousands of criminal cases unfold. He can’t recall any in which the defendant wasn’t locked up during the appeals process. “When I first heard it, I didn’t think it could be true,” he says.

In a high-profile trial in April, Costello was convicted of manslaughter for killing his 4-month-old son, Darwin, in 2010. The boy died of massive injuries: skull fractures, internal bleeding, bruising, a fractured spinal cord, retinal hemorrhaging and a fractured elbow. Costello had rushed the baby to HealthPark, handed him to a nurse, then drove back to his town house. There, Lee County sheriff’s deputies found a marijuana greenhouse, prescription pills and Costello’s other toddler son, Kingston, who’d been left there alone.

Later that day, Costello and former fiancee Whitney Simonsen, the boys’ mother, sat alone in an interrogation room. As a video camera taped them, Costello broke down, telling her “I killed my kid,” and calling himself a murderer, deputies said.

Though Costello and Simonsen were initially charged with a number of drug offenses, the charges against Costello were later dropped because there wasn’t enough evidence to prove whose drugs they were, state attorney’s office spokeswoman Samantha Syoen told The News-Press at the time.

According to the U.S. Drug Enforcement Administration, Simonsen was known to stockpile the painkiller oxycodone and might have had as many as 100,000 pills scattered throughout the house. She eventually got 10 years of probation as part of a plea deal in exchange for testifying against Costello, who also was convicted of child neglect with bodily injury and tampering with evidence.

While awaiting his trial, Costello made bail in 2012, and was released to live with his mother, Patty. During that time, he got a job and fathered a child, who now lives in Rhode Island, according to his mother, who testified at his most recent bond hearing. In April of that year, he was ordered to post $50,000 more for not getting drug tested, which was a condition of his release.

After his trial, conviction and 30-year sentence, Costello was sent to Apalachee Correctional Institution in Sneads. Four days later, he began the appeal process.

Costello was released in September under the condition he again live with his mother at her ranch house in a quiet neighborhood off McGregor Boulevard in Fort Myers, while he waits for Lakeland-based Second District Court of Appeals to hear his case. No date has been set, but Costello’s former defense attorney, Wilbur Smith, says appeal cases generally take at least a year.

Although appellate courts are unpredictable, Smith says, “I think he has a good chance that the case will be reversed on appeal. ... In my own personal view, there was insufficient evidence to convict him. No one can say how that child was injured, but the jury said, ‘Someone had to have done it,’” Smith says. “I think they felt like they had to convict someone, and he was the logical one.”

In the bond hearing, Smith argued the state shouldn’t have lumped in the drug charges, because they prejudiced the jury.

“This case could have been tried without any reference to drugs,” he told Lee Circuit Judge Mark Steinbeck. “Without the prejudicial effect of the drugs, the jury might well have reached another verdict – it was highly prejudicial.”

A juror, shocked to learn Costello was out of jail, strongly disagreed, saying it was the evidence presented and Costello’s behavior that convinced them of his guilt. A second juror contacted by The News-Press also was surprised he had been released from prison.

But had the jury been able to see the entire taped conversation between Simonsen and Costello, Smith thinks they’d realize that his “I killed my kid” comment had been taken out of context.

“They would have seen that the mother was aggressive, that she did not appear to be in the remorseful state of mind you’d expect a mother to be in, and they’d see what Ryan said was more an expression of grief (than a confession).” Simonsen could not be reached for comment. Though Costello was granted visitation with Kingston after his first release, a call to the Department of Children and Families asking whether he does again was not returned.

Smith describes Costello, a sometimes-college student who worked at his father’s construction firm and as a waiter, as “very quiet, nonaggressive with a low-key personality – and I’ve known him his whole life.”

The reason post-conviction bonds are rare is because a judge must rule that a case had legitimately questionable elements.

“A person is not entitled to a bond on appeal,” Smith says. “However, if the judge believes that there are fairly debatable issues, then the judge has the discretion to set what’s called supersedeas bail,” which is what Steinbeck did.

It’s an example of how sometimes, the letter of the law seems to fly in the face of common sense, D’Alessandro says.

“My initial gut reaction was same as everybody else,” he says. “People feel a gut reaction — there’s nothing wrong with that — but they don’t understand the law and they’re not going to take the time to understand the intricacies.”

In this case, the intricacies revolve around precedent dictating that if a defendant meets a series of conditions and isn’t a flight risk, he or she should be given bail. And after listening to a transcript of that hearing, D’Alessandro says he understands the argument Smith used to convince Steinbeck.

At the hearing, which Costello didn’t attend, Smith cited a number of other cases supporting this, including a 1956 Florida Supreme Court case he said clearly shows Costello met the criteria for bail.

“We would suggest that becoming romantically involved with someone (is) immaterial,” Smith argued. “That’s a moral judgment, not a legal judgment. Otherwise, he performed well on bail and his prior record is minor (and his) family ties are very strong.”

Fair enough, D’Alessandro says. “If the judge’s conclusion is, ‘This is what the law says and I have to follow it,’ that’s it. We may debate it, but that’s what they have appeals for. Law is a very interesting process. ... Essentially, the system is you have an issue and it gets argued.”

Public defender Gary Bass took over. Bass wouldn’t comment on this story, nor were calls to Costello’s mother or father returned. On two visits made by The News-Press to Costello’s mother’s home in an attempt to reach him and his family, no one answered the door, and there were no cars in the driveway.

At the hearing, Assistant State Attorney Bob Lee painted Costello as someone contemptuous of the law, shown by several drug convictions.

“He’s got four prior misdemeanors ... and he’s been convicted of the very thing that the evidence in this case shows he continued to do. He was given a chance by this court; he ignored that and continued to do it. This shows a contempt for the laws of Florida,” Lee said. “(Also) although he is a lifelong resident ... he has nothing here. He has a wealthy family that supported him by posting his prior bond, by paying for his attorney, but he himself has no investments, he has no ties to this community whatsoever.”

In fact, Lee pointed out, Costello has ties to the Rhode Island family he created while out on bond, “so we would submit that he is a flight risk. ... We have seen that his first instinct when confronted with the consequences of his actions are to flee – that was obvious in this case.

“When confronted with the injuries to (Darwin), instead of taking that child and staying with that child at the hospital and doing everything a father should do, his instinct was to try to cover his tracks, destroy the marijuana grow room and flee. The state submits that is the same kind of behavior he will follow again if given an opportunity.”

Lee wouldn’t comment to The News-Press for this story, but Syoen said “We absolutely believe that he should not be out of prison based on what happened to that child.”